OFFICE BUILDING LEASE
THIS LEASE, made and executed as of the 30th day of SEPTEMBER, 1996,
between CITINATIONAL-BUCKEYE BUILDING CO., a California limited partnership,
9100 Wilshire Boulevard, Suite 404, Beverly Hills, California 90212,
hereinafter designated the LANDLORD, and CITY NATIONAL BANK, A NATIONAL
BANKING ASSOCIATION, 400 NORTH ROXBURY DRIVE, BEVERLY HILLS, CALIFORNIA
90210, hereinafter designated the TENANT, consists of the following
agreements:
1. DEMISED PREMISES. USE AND TERM. EARLY OCCUPANCY. For and in
consideration of the covenants hereinafter mentioned, the Landlord leases to
the Tenant and the Tenant hereby leases from the Landlord the premises
consisting of Suite No. 100 located on the Ground Floor and the entire 2nd,
3rd, 6th, 9th and 20th Floors (as per attached plans, marked Exhibit "A") in
the CITY NATIONAL BANK BUILDING, 606 South Olive Street, City of Los Angeles,
California, 90014 to be used by said Tenant as and for ADMINISTRATIVE OFFICES
FOR A BANK or for general office purposes and for no other purpose, for the
term of TEN (10) YEARS, commencing on the 1ST day of JANUARY 1997, and ending
on the 31ST day of DECEMBER 2006. Landlord agrees that it shall not lease any
other Premises in the Building to any other bank or savings and loan
association for use as a home office bank or branch bank serving the general
public without the prior consent of Tenant, which consent shall not be
unreasonably withheld. Landlord agrees that it shall not lease any other
Premises on the Ground Floor of the Building to any other bank or savings and
loan association for use as a home office bank or branch bank serving the
general public.
On September 29, 1996, Landlord completed the construction and build-out
of the 6th Floor premises in accordance with Tenant's plans and
specifications, and Tenant accepted and moved into the premises prior to the
scheduled commencement date of this Lease on September 30, 1996. Landlord and
Tenant agree that Tenant's occupancy from September 30, 1996 through December
31, 1996 and thereafter for the full ten (10) year Lease Term through
December 31, 2006, is under the terms and conditions of the Lease.
On November 15, 1996, Landlord completed the construction and build-out
of the 3rd Floor premises in accordance with Tenant's plans and
specifications, and Tenant accepted and moved into the premises prior to the
scheduled commencement date of this Lease on November 16, 1996. Landlord and
Tenant agree that Tenant's occupancy from November 16, 1996 through December
31, 1996, and thereafter for the full ten (10) year Lease Term through
December 31, 2006 is under the terms and conditions of this Lease.
2. RENT. The Tenant agrees to pay to the Landlord as rent for said
leased premises, monthly installments, as follows:
From September 30, 1996 through November 15, 1996 $13,712.00 per month
From November 16, 1996 through December 31, 1996 $25,683.00 per month
From January 1, 1997 through December 31, 2001 $80,456.00 per month
From January 1, 2002 through December 31, 2006 $88,526.00 per month
Each installment shall be payable in advance on the 1st day of each and every
calendar month during the term hereof, commencing on September 30, 1996, in
lawful money of the United States of America, which the Tenant agrees to pay
to Landlord without deduction or offset, prior notice or demand, at the
office of the building or such place as the LANDLORD may designate. Said rent
is subject to increases as provide in Articles 20, 36 and as otherwise
hereinafter provided. In the event the actual commencement date of this lease
should fall on other than the 1st day of a calendar month, then the rental
for the first and last month of the lease term will be prorated on a calendar
month basis. Parking charges are payable as additional rent.
3. SUBLEASE AND ASSIGNMENT. Neither Tenant, nor Tenant's legal
representatives or successors shall mortgage, encumber, assign or transfer
this lease or sublease, or use or occupy or permit the demised premises or
any part thereof to be used or occupied by others, without the prior written
consent of Landlord in each instance, which consent shall not be unreasonably
withheld or delayed in accordance with the express terms and conditions of
this Article. Any such mortgage, encumbrance, sublease or assignment or
permission without such consent shall be voidable, at the option of Landlord
and, at the option of Landlord, shall terminate this lease. If the demised
premises or any part thereof be occupied by any party other than Tenant,
without Landlord's consent, Landlord may at its option, collect rent from the
occupant, and apply the net amount collected to the rent herein reserved but
no such occupancy or collection shall be deemed a waiver of the conditions of
this Article or the acceptance of the occupant as Assignee or Subtenant or a
release of Tenant from the further performance by Tenant of the obligations
on the part of Tenant under this lease.
No sublease or assignment may become effective unless and until Tenant
has given Landlord at least thirty (30) days prior written notice of such
proposed bonafide sublease or assignment, such notice to be received by
Landlord at least thirty (30) days prior to the proposed commencement date of
such proposed sublease or assignment. Said notice shall state and include
the following: the name of the proposed transferee; the status of the
proposed transferee either as, an individual, partnership, corporation or the
like; the present business address of the proposed transferee; a present
financial statement of the proposed transferee; the stated use or purpose and
business to be conducted under the proposed sublease or assignment; the
proposed commencement and termination date of such proposed sublease or
assignment: and whether all or portion of the leased premises is proposed to
be subleased under such proposed sublease.
Tenant may sublease or assign all or a portion of the demised premises
only upon the obtaining of Landlord's written consent and subject to the
following express conditions: A. That Tenant does not sublease or assign to
more than a reasonable number of transferees which number shall be subject to
Landlord's approval; B. That each transferee shall be subject to the prior
written approval of Landlord which approval shall not be unreasonably
withheld, conditioned or delayed, but without limiting the generality of the
foregoing, it shall be reasonable for Landlord to deny such approval if: (1)
The use to be made of the demised premises by the proposed transferee is (a)
not generally consistent with the character and nature of all other tenancies
in the Building or with Landlord's leasing policy, or (b) a use which
conflicts with any so called "exclusive" then in favor of another tenant of
the Building or of any of Landlord's other Buildings which are in the same
complex as the Building, or (c) any use which is the same as that stated in
any percentage lease to another tenant of the Building or any of Landlord's
other Buildings which are in the same complex as the Building or (d) a use
which would be prohibited by any other portion of
this lease (including but not limited to any rules and regulations then in
effect): or (2) The character, moral stability, reputation and financial
responsibility of the proposed transferee is not reasonably satisfactory to
Landlord or in any event not at least equal to those which were possessed by
Tenant as of the date of execution of this lease; C. That in no event shall
the term of such sublease or assignment be for a longer period than the
unexpired term of this lease; D. That each sublease or assignment shall
expressly provide that it is subject and subordinate to this lease; E. That
Tenant shall pay to Landlord, Landlord's then standard processing fee, which
as of the date of execution of this Lease is currently the sum of $1,000,000;
F. That the proposed transferee shall execute an agreement on Landlord's then
standard form pursuant to which it shall agree to perform faithfully and be
bound by all of the terms, covenants, conditions, provisions and agreements
of this lease for the period covered by the sublease or assignment to the
extent of the space subleased; G. That an executed duplicate original of each
sublease or assignment and assumption agreement in a form acceptable to
Landlord, together with all sums due, shall be delivered to Landlord within
five (5) days after the execution thereof and any such sublease or assignment
shall not be binding upon Landlord until the delivery of the foregoing to
Landlord and the execution and delivery of Landlord's consent thereto and; H.
That Landlord shall have the right upon written demand to require the
transferee to pay the rent under the sublease or assignment directly to the
Landlord and/or to require Tenant to pay to Landlord a sum equal to (i) fifty
per cent (50%) of any rent or other consideration paid to Tenant by any
transferee which is in excess of the rent then being paid by Tenant to
Landlord (to the extent of, and as apportionable to space sought to be
subleased) pursuant to the terms of this lease, after reduction for the
reasonable and necessary direct costs actually incurred by Tenant to obtain
the sublease or assignment, such as e.g., any brokerage fee and remodeling
costs, but with no reduction for any indirect costs, such as e.g., rent and
expenses paid by Tenant while the space sought to be subleased or assigned is
vacant, and (ii) fifty per cent (50%) of any other profit or gain realized by
Tenant from any such subleasing. All sums payable hereunder by Tenant shall
be paid to landlord as additional rent immediately upon receipt thereof by
Tenant. Any such rent, profit, gain or other consideration, or sum equal to
same, as set forth herein, not so paid to Landlord as herein required, shall
be and is deemed to be held and retained by Tenant in trust for the sole
benefit of Landlord, and, whether actually held or retained by Tenant or not,
shall be and is deemed to be held and retained by Tenant in trust for the
sole benefit of Landlord, and whether actually held or retained by Tenant or
not, shall be chargeable to Tenant and payable to Landlord upon demand. Any
failure or refusal by Tenant to pay Landlord same shall constitute a default
and material breach of the terms, covenants and conditions of this lease
subjecting Tenant to all the rights and remedies of Landlord under this lease
and applicable law.
The consent by Landlord to a sublease or assignment shall not in any way
be construed to relieve Tenant or the transferee from obtaining the express
consent in writing of Landlord to any further transfer. Any further transfer
shall require the written consent of Tenant and any previous transferee
except that Tenant and any transferee hereunder expressly waive their right
to consent to any further transfer of the premises on their behalf by
Landlord. The consent by Landlord to a sublease or assignment shall not in
any way be construed to release Tenant from any liability whether past,
present or future under this lease or to release Tenant from any liability
under this lease because of Landlord's failure to give notice of default
under or in respect to any of the terms, covenants, conditions, provisions or
agreements of this lease. Notwithstanding the consent of Landlord to an
assignment or sublease, Tenant shall remain liable for payment of all bills
rendered by Landlord for the rent and other charges incurred by the
transferee for services and materials supplied to the demised premises. If
Tenant is a corporation which, under the then current guidelines published by
the Commissioner or Corporations of the State of California, is not deemed a
public corporation, or if Tenant is an unincorporated association or a
partnership, the transfer, assignment, or hypothecation of any stock or
interest in such corporation, association or partnership in excess of
twenty-five (25%) percent shall be deemed a proposed transfer within the
meaning of this Article, including the requirement of obtaining Landlord's
prior written consent. LANDLORD HEREBY CONSENTS TO THE ASSIGNMENT,
SUBLETTING, OR TRANSFER OF THIS LEASE BY TENANT TO ANY CORPORATION RESULTING
FROM A CONSOLIDATION, OR TO THE SURVIVING CORPORATION IN CASE OF A MERGER, TO
WHICH CONSOLIDATION OR MERGER TENANT SHALL BE A PARTY, OR TO ANY BANK
ACQUIRING ALL OR SUBSTANTIALLY ALL OF THE ASSETS OF TENANT, OR TO ANY
CORPORATION RESULTING FROM A REORGANIZATION OF TENANT.
4. EXPIRATION. If Tenant shall hold-over after the expiration of the
lease term with the written consent of Landlord, such holding shall be
construed to be a tenancy only month-to-to-month, but otherwise in accordance
with the terms and conditions hereof insofar as they are applicable, but
Tenant shall pay the rate Landlord is then offering to prospective tenants
for the herein demised premises for such further time as Tenant may hold the
same; but nothing in this Article shall be construed as consent by Landlord
to the occupancy or possession of the demised premises by Tenant after the
expiration of the term hereof. If Tenant holds over after the termination of
this lease without express written consent of the Landlord, Tenant shall pay
to Landlord rent at the rate landlord is then offering to prospective tenants
for the herein demised premises (but in no event less than two times the
monthly rental which was payable for the last month of the lease term), plus
sums payable under Article 20 and other sums payable as rent under this lease
for the period during which Tenant retains possession of the premises.
Nothing herein shall be construed as a waiver of any of the Landlord's rights
or remedies to recover possession of the demised premises. Tenant shall be
liable to Landlord for any and all reasonably related damages suffered by
Landlord including but not limited to any damages to the demised premises and
any lost rentals, profits or leases suffered because of Tenant's holdover of
the premises without the written consent of the Landlord. This lease shall
terminate on the date set forth without the necessity of notice from either
party.
6. AUTOMOBILE PARKING. A. INVITEE PARKING. Automobile parking subject to
availability, shall be extended to Tenant's invitees, in common with the
invitees of other tenants, at reasonable parking rates and upon other
conditions established by Landlord from time to time in the parking area
where designated by Landlord. During the first five (5) years of the initial
Lease Term, Landlord shall issue transient parking validations to Tenant
allowing its retail banking customers and invitees to park on a transient
basis at 80% of the then current posted validation rate. As of the date of
execution of this Lease, the current posted validation rate is $2.40 for each
20 minutes or portion thereof. After the first five (5) years, Tenant shall
pay the full amount of the then current
posted validation rate for transient parking validations. Landlord reserves
the sole right and option as to whether or not an attendant will be furnished
for such automobile parking area or areas. If no attendant is furnished,
Landlord will provide suitable designation of the parking area to Tenant.
This right to park will be solely for the accommodation of the Tenant and
Tenant expressly agrees that Landlord assumes no responsibility of any kind
whatsoever in reference to such automobile parking areas or the use thereof
by the Tenant, its employees or invitees.
B. EMPLOYEE PARKING. Commencing January 1, 1997 and on the 1st day of
each month thereafter, Landlord will issue Tenant monthly parking permits for
one hundred (100) automobiles at a discounted rate of $95.00 per car per
month. Tenant shall pay Landlord in advance on the 1st day of each and every
calendar month during the Term hereof, commencing on January 1, 1997, in
lawful money of the United States of America, the lump sum of $9,500.00 per
month as additional Rent for said parking permits, without deduction or
offset for any reason including whether the entire amount of authorized
automobiles is being parked at any time, and without prior notice or demand;
provided that the aforesaid lump sum rental rate of $9,500.00 per month is
subject to increase by an additional $500.00 on the 1st day of January of
each year during the Lease Term (so that during the tenth year of the Lease
Term Tenant shall be paying at the rate of $140.00 per authorized
automobile); provided further that in no event shall Tenant be required
pay at a rate per authorized automobile in excess of Landlord's posted
parking rate at any time during the Lease Term. Parking for any additional
automobiles in excess of the authorized one hundred shall be subject to the
availability of space and paid for at the Landlord's posted parking rate.
C. GENERAL. All parking shall be on a non-reserved, self-park basis in a
combination of single and tandem spaces in accordance with the procedures and
directives of Landlord's parking operator as issued from time to time to
ensure the efficient and economical operation of the parking garage facility.
Parking shall be in common with other tenants and invitees during normal
building business hours, in the parking area inside the City National Bank
Building or within a reasonable distance from said building. The location for
such parking may be as designated by the Landlord from time to time, but the
Tenant shall not be entitled to have any specific parking stall or stalls
designated for the Tenant's exclusive use. All parking shall be pursuant to
the terms and conditions of the Supplementary Parking Agreement, attached
hereto as Exhibit "B" and incorporated herein by this reference as if set
forth in full. Timely payment of the consideration herein provided shall
expressly be a condition precedent to the Tenant's continuing right to
exercise the parking rights under this License.
7. ALTERATIONS-FIXTURES. The demised premises shall not be altered,
repaired or changed without the written consent of Landlord first had and
obtained, except that Tenant shall have the right to perform non-structural,
cosmetic remodeling improvements of the Premises which does not affect the
Building systems (as hereinafter defined) or substantially alter the layout
of the Premises up to a total expenditure which does not exceed the sum of
$15,000.00 for any or all of such improvements within any twelve (12) month
period, without Landlord's prior written consent. All such alterations,
improvements or changes shall be at the sole cost of Tenant, and Tenant shall
hold Landlord and the demised premises harmless and free from any lien or
claim therefore and all other liability, claims and demands arising out of
any work done or material supplied to the demised premises at the instance of
Tenant, and from all actions, suits and costs of suit by any person to
enforce any such lien or claim of lien, liability, claims or demands,
together with the costs of suit and attorney's fees incurred by Landlord in
connecting therewith. Tenant shall cause any mechanic's lien or other lien
filed against the demised premises or the building of which the demised
premises are a part to be released and removed within ten (10) days of such
filling either by the satisfaction of such lien or by the posting of a bond.
Landlord may impose, as a condition of such consent, such requirements as
Landlord in its sole and reasonable discretion may deem reasonable and
desirable, including, but not limited to, the requirement that Tenant utilize
for such purposes only contractors, materials, mechanics and materialmen
approved by Landlord, and the requirement that Tenant shall furnish Landlord
with a Completion Bond prior to the commencement of any work, Tenant shall
construct such improvements, alterations or repairs in conformance with any
and all applicable rules and regulations of any Federal, State, County or
Municipal code or ordinance. In any event, Landlord's contractor shall
perform all mechanical, electrical, plumbing, air conditioning, permanent
partition and ceiling tile work (hereinabove referred to as the "Building
systems"). Tenant agrees to give Landlord written notice of the commencement
date of any alterations, improvements or repairs to be made in, to or upon
the premises not later than fifteen (15) days prior to the commencement of
any such work, in order to give Landlord time to post notices of
non-responsibility. In the event any construction, alteration, decorating or
repair work (including any engineering or architectural services or
consultants employed by Landlord relative to tenant's alterations or
improvements) is performed by Landlord's contractor, the charges for such
work shall include an administrative fee for Landlord's administration of the
work in the amount of 20% of the contract sum(s) on each project administered
by Landlord at a cost of $10,000.00 or less, and 15% of the contract sum(s)
on each project administered by Landlord costing more than $10,000.00. All
charges for work performed by a Landlord's contractor shall be deemed
additional rent under this lease, payable in advance prior to commencement of
construction. All such alterations, repairs, additions or improvements
(including any alterations, repairs, additions or improvements installed
during Tenant's prior occupancy of the demised premises pursuant to any
previous lease, sublease or otherwise, and including but not limited to the
bank vault, vault door and pedestrian escalator installed between Suite 100
and the 2nd Floor Premises), shall, unless otherwise provided by written
agreement, become the property of Landlord and shall remain upon and be
surrendered with the premises upon the expiration of this lease or any sooner
termination thereof; provided that upon expiration or termination of this
Lease, Landlord shall have the right and option by written notice to Tenant
to require Tenant at its sole cost to remove any of the alterations, repairs,
additions or improvements installed by or for Tenant and repair any damage to
the Premises occasioned by such installation or removal and restore the
Premises to original condition, normal wear and tear excepted.
At the expiration of the term of this lease and provided that Tenant is not
in default hereunder, all Tenant's free-standing personal property not
attached to the demised premises may be removed by Tenant, at Tenant's sole
expense, provided, however, Tenant shall pay for any damages caused to the
demised premises by the removal of said items, so that after the removal of
said items, the demised premises will be in the same condition as at the time
prior to the said installations, if any, reasonable wear and tear excepted.
In any event, at the sole option of Landlord, Tenant at its expense, must
remove said items and repair any damage to the premises occasioned by said
installation and/or removal and restore the premises to original condition. If
Tenant shall fail to complete such removal or restoration and repair such
damage, Landlord may do so and charge the reasonable cost thereof to Tenant,
which sum shall be deemed additional rent hereunder and shall be due and
payable from Tenant to Landlord within ten (10) days after Landlord has
rendered to Tenant a written statement therefor. Any improvements, equipment
or personal property not removed by Tenant from the premises upon the end of
the term shall be conclusively presumed to have been abandoned by Tenant, and
the cost of removal, storage and/or sale of same shall be deemed additional
rent hereunder, payable from Tenant to Landlord in the same manner as
provided above with respect to restoration charges. Any tenant improvements
for which an allowance is given by Landlord to Tenant and all carpeting
and/or window coverings installed in the premises shall become part of the
realty and become the property of Landlord and remain in the demised premises
upon expiration or sooner termination of the lease or Tenant's vacating or
abandonment of the demised premises.
THE PROVISIONS OF ARTICLES 28 AND 39 ARE INCORPORATED HEREIN BY THIS
REFERENCE AS IF SET FORTH IN FULL.
8. ETHICS. If Tenant is a member of any profession, he agrees to abide by
the Code of Ethics of the association recognized as representing that
particular profession in the County of Los Angeles, State of California.
3
9. UTILITIES. Landlord agrees to supply for standard desk-furnished
business offices, during the usual building business hours on business days,
reasonable amounts of domestic water for drinking purposes, heat,
air-conditioning, and electric current for lighting purposes and power for a
reasonable number of fractional horsepower office machines, together with
Landlord's standard janitorial services five times each week, Saturdays,
Sundays and recognized legal holidays excepted. Landlord shall not supply any
janitorial services or cleaning for any plumbing fixtures located in the
demised premises. Tenant shall have the obligation and responsibility for
cleaning and maintaining any such plumbing fixtures. LANDLORD SHALL PROVIDE
THE SAME SERVICES, MAINTENANCE AND REPAIRS FOR THE DEMISED PREMISES AT
LANDLORD'S COST AS LANDLORD PROVIDES TO THE OTHER OFFICE SPACE TENANTS IN THE
BUILDING (AS DISTINGUISHED FROM GROUND-FLOOR TENANTS).
Tenant will not, without the written consent of Landlord, use any office
equipment in the premises using current in excess of 110 volts, or which will
in any way generate heat or increase the amount of electricity, water or
air-conditioning usually furnished or supplied for use of the premises as
general office space; nor connect any apparatus or device for the purposes of
using electric current except through existing electrical outlets or for the
use of water except with existing water pipes in the premises. If Tenant
requires water or electric current in excess of that usually furnished or
supplied for use of the premises as general office space, Tenant shall first
procure the consent of Landlord, which Landlord may refuse, to the use
thereof and Landlord may cause a water meter or electric current meter to be
installed in the premises, to measure the amount of water and electric
current consumed for any such other use. The cost of any such meters and of
installation, maintenance and repair thereof shall be paid for by Tenant and
Tenant agrees to pay Landlord promptly upon demand therefor by Landlord for
all such water and electric current consumed as shown by said meters, at the
rates charged for such services by the City of Los Angeles or the local
public utility, as the case may be, for furnishing the same, plus any
additional expense incurred in keeping account of the water and electric
current so consumed.
In the event Tenant utilizes or consumes utilities or services after
usual building business hours or in amounts which are appreciably in excess
of those utilized or consumed by the average office tenants in the building,
Tenant shall reimburse Landlord, as additional rent, upon receipt of demand
therefor, the cost of such excess consumption. In the event Tenant utilizes
heating, air conditioning or fan service after normal building business
hours, Tenant shall reimburse Landlord its then current building standard
rate for such services. As of the date of execution of this Lease, Landlord's
current building standard rates for these services are: for heat or air
conditioning -- $175.00 per hour; for fan service -- $75.00 per hour.
Landlord agrees to supply, for any storage areas leased hereunder,
during usual building business hours on business days, reasonable amounts of
electric current for lighting purposes only. Landlord shall have no
obligation to supply to storage areas, water, heat, air-conditioning or
electric current for any purposes other than lighting.
The normal building business hours are from 6:00 A.M. to 6:00 P.M.,
Monday through Friday, recognized legal holidays excepted. At any time during
the term of this lease, normal building business hours for the furnishing of
any utilities or services to the Building may be curtailed by Landlord
without abatement of rent, due to any Energy or Natural Resource Conservation
Act now or hereinafter enacted or the directive of any Energy or Natural
Resource Agency or any other similar or dissimilar statute or directive of
any federal, state or other governmental, or quasi-governmental agency, or
public utility, or any other entity vested with the power to regulate
utilities or services.
10. NOTICES. All notices to be given hereunder by Landlord to Tenant
shall be in writing and may be served either personally or by depositing the
same in the United States mail, postage prepaid, either by ordinary,
registered or certified mail, and addressed to Tenant at 400 NORTH ROXBURY
DRIVE, BEVERLY HILLS, CALIFORNIA 90210, WITH A COPY ADDRESSED TO THE
ATTENTION OF THE SENIOR VICE-PRESIDENT -- CORPORATE PREMISES, AT THE SAME
ADDRESS. Said notice shall be deemed effective upon deposit in any public
depository of the United States mail. If there be more than one Tenant, then
notice to any of them shall constitute notice to all and notice from any of
them shall constitute notice from all. If Tenant be a corporation, then such
service upon any employee shall constitute service upon the corporation and
in this regard Tenant specifically waives any rights as to methods of service
as set out in Sections 1161 and 1162 of the California Code of Civil
Procedure. Tenant hereby waives all other methods of notice prescribed by the
Codes of California.
Any notice desired to be served on Landlord by Tenant must be sent by
prepaid United States registered or certified mail to Landlord at 9100
Wilshire Boulevard, Suite 404, Beverly Hills, California 90212, or at such
other place as Landlord may from time to time designate in writing.
11. INSURANCE. Tenant shall, at its sole expense, procure and maintain
comprehensive public liability insurance naming Landlord as an additional
insured for the demised premises during the term of this lease in minimum
amounts of $1,000,000.00 combined single limit. Tenant shall furnish Landlord
with evidence of such insurance, in a form satisfactory to Landlord, which
shall provide that the coverage shall not be canceled or reduced without ten
(10) days prior written notice to Landlord. THE PARTIES TO THIS LEASE SHALL
EACH PROCURE AN APPROPRIATE CLAUSE IN, OR AN ENDORSEMENT ON, ANY POLICY OF
FIRE OR EXTENDED COVERAGE INSURANCE COVERING THE PREMISES AND THE BUILDING OF
WHICH THE PREMISES ARE A PART, AND THE IMPROVEMENTS, FURNITURE, FIXTURES, AND
EQUIPMENT LOCATED IN OR ON THE PREMISES, PURSUANT TO WHICH THE INSURANCE
COMPANIES WAIVE SUBROGATION OR CONSENT TO A WAIVER OF RIGHT OF RECOVERY, AND
HAVING OBTAINED SUCH CLAUSES OR ENDORSEMENTS OF WAIVER OR SUBROGATION OR
CONSENT TO A WAIVER OF RIGHT OF RECOVERY, EACH PARTY HEREBY AGREES THAT IT
SHALL NOT MAKE ANY CLAIM AGAINST OR SEEK TO RECOVER FROM THE OTHER FOR ANY
LOSS OR DAMAGE TO ITS PROPERTY, OR THE PROPERTY OF OTHERS, INCLUDING
CONSEQUENTIAL LOSS OR DAMAGE RESULTING FROM FIRE OR OTHER HAZARDS COVERED BY
SUCH FIRE AND EXTENDED COVERAGE INSURANCE INCLUDING NEGLIGENT ACTS.
12. RIGHTS OF LANDLORD. Landlord reserves the following rights: (a) upon
prior notice to Tenant, to change the address and/or name of the building
without liability to Tenant; (b) to designate all sources furnishing sign
painting or lettering, ice, bottled water and toilet supplies used on the
premises; (c) constantly to have pass keys to the premises; (d) to grant
anyone the exclusive right to conduct any particular business or undertaking
in the building in which the demised premises are situated; (e) to enter the
demised premises at any time whether or not Tenant is present to admit
Landlord for inspections, repairs, alterations or additions to the premises
or the building in which the premises are situated for window cleaning and
janitorial services, to exhibit the premises to others, to affix and display
"For Rent" signs, and for any purpose whatsoever related to the safety,
protection, preservation or improvement of the premises, the said building,
or Landlord's interest, without being deemed guilty of an eviction or
disturbance of Tenant's use and possession, and without being liable in any
manner to Tenant on account thereof; (f) at any time, and from time to time,
whether at the instance of Landlord or pursuant to governmental requirements,
at the Landlord's expense, to make repairs, alterations, additions,
improvements or decorating, whether structural or otherwise, in or to the
building, or any part thereof, including the demised premises. Without
limiting the generality of the foregoing rights, Landlord shall specifically
have the right to remove, alter, improve or rebuild the lobby and all other
public and rentable areas of the building as the same are presently or shall
hereafter be constituted, or any part or parts thereof. Landlord shall not be
liable to Tenant for any expense, injury, loss or damage resulting from any
work so done in or about the demised premises or the building or any adjacent
or nearby buildings, land, street or alley, all claims against the Landlord
for any and all such liability being hereby expressly released by Tenant,
unless caused by Landlord's or its agents negligence or willful misconduct.
In connection with making repairs, alterations, decorating, additions or
improvements under the terms of this Article, Landlord shall have the right
to access through the demised premises, as well as the right to take into and
upon and through said premises or any other part of the building all material
that may be required to make such repairs, alterations, decorating, additions
or improvements, as well as the right in the course of such work to close
entrances, doors, corridors, elevators, or other building facilities, or
temporarily to abate the operation of such facilities, without being deemed
or held guilty of an eviction of Tenant and without liability for damages to
4
Tenant's property, business or person and without liability to Tenant by
reason of interference with the business of Tenant or inconvenience or
annoyance to Tenant or the customers of Tenant. The rent reserved herein
shall in no way abate while said repairs, alterations, decorating, additions
or improvement are being made, and Tenant shall not be entitled to maintain
any set-off or counter-claim for damages of any kind against Landlord by
reason thereof, all such claims being hereby expressly released by Tenant.
However, all such work shall be done in such manner as to cause Tenant the
least inconvenience practicable. Landlord reserves and shall have the right
to enter upon the demised premises for the purpose of posting and maintaining
such notices on the premises as may be necessary to protect Landlord against
mechanic's, materialmen's or other liens and any other notices that may be
proper and necessary.
13. DESTRUCTION-FIRE OR OTHER CAUSE. If said building shall be totally
destroyed, this lease shall thereupon terminate. If said building or demised
premises shall be damaged by fire, earthquake, or any other cause without
fault or neglect of Tenant, so that the leased premises become untenantable,
then, if the leased premises cannot be made tenantable within one hundred
twenty (120) working days from the date of such damage, this lease may be
terminated by Landlord in the event the leased premises cannot be made
tenantable within one hundred eighty (180) days, this lease may be terminated
by either party. In any case where the leased premises are rendered partially
and permanently untenantable by fire, earthquake, or other cause without the
fault or neglect of Tenant, the monthly rental shall be adjusted in the
proportion that the rental value of the untenantable portion of the demised
premises bears to the rental value of the whole thereof. In any case, where
the leased premises are rendered partially but only temporarily untenantable
by the aforementioned causes, there shall be no abatement of rental.
14. RIGHT OF REPOSSESSION. If, in compliance with any law, or ordinance
now or hereafter enacted, or if required to comply with the directions or
requirements of any public officer, board or commission, it becomes necessary
for Landlord to acquire permanently all or any portion of the demised
premises, Landlord or its assigns shall have the right to repossess the
demised premises, or any portion thereof, at any time upon thirty days'
written notice to Tenant, and when said space shall have been so permanently
repossessed, Landlord shall, in lieu of any and all claims for damages, allow
Tenant a credit on Tenant's rent in the proportion that the rental value of
the space taken bears to the rental value of the whole of the demised
premises; provided, however, that if the space taken is of such an amount or
size as to make the remaining space unusable to Tenant, then Landlord, upon
thirty (30) days' written notice from Tenant, will endeavor, if available, to
furnish Tenant with comparable space elsewhere in the building and to place
Tenant in such new space, and this lease and each and all of the terms,
covenants and conditions thereof shall thereupon remain in full force and
effect and be deemed applicable to such new space; provided, however, that if
Landlord shall be unable to provide Tenant with such other space, then this
lease shall thereupon cease and terminate. No exercise by Landlord of any
right herein reserved shall entitle Tenant to damages for any injury or
inconvenience occasioned thereby, nor shall Tenant by reason thereof be
entitled to any abatement in rent (except as above set forth in case of
taking of space permanently.)
15. EMINENT DOMAIN. Should Landlord, at any time during the continuance
in force of this lease, be deprived of the building in which the demised
premises are situated, or any part thereof, or any part of the land on which
the building or appurtenances are situated, by condemnation or eminent domain
proceedings, this lease shall terminate, at Landlord's option, on the date
when Landlord is actually deprived of possession of said land or building, or
some part thereof, and thereupon the parties hereto shall be released from
all further obligations hereunder. Should Tenant, at any time during the
continuance in force of this lease, be deprived of the demised premises or
any substantial part thereof preventing Tenant from using the remainder of
the Premises for the purposes intended under this Lease, by condemnation or
eminent domain proceedings, this lease shall terminate, at Tenant's option,
on the date when Tenant is actually deprived of possession of the Premises,
or said substantial part thereof, and thereupon the parties hereto shall be
released from all further obligations hereunder. Upon the termination of this
Lease as aforesaid, Landlord shall thereupon repay to Tenant any rental
theretofore paid by Tenant and unearned at the date of such termination.
Tenant shall not be entitled to any compensation, allowance, claim or offset
of any kind against the Landlord, as damages or otherwise, by reason of such
condemnation or eminent domain proceedings or by reason of being deprived of
the demised premises or the termination of this lease, and said Tenant does
hereby waive, renounce and quit-claim to Landlord any right in any to any
award, judgment, payment or compensation which shall or may be made or given
because of the taking of said premises, or any portion thereof, by virtue of
any such condemnation or eminent domain proceedings, whether received in any
such action or in settlement or compromise thereof by Landlord, except that
Tenant shall have the right to file a separate claim to recover the value of
its personal property in the eminent domain proceedings.
16. USE OF BUILDING. Tenant shall not be allowed to use the name of the
building in which the demised premises are located, or words to that effect,
in connection with any business carried on in said premises (except as
Tenant's address) without written consent of Landlord. Tenant shall not
engage in any advertising whatsoever, which in any way shall adversely affect
the character of the building of which the demised premises are a part.
TENANT FURTHER COVENANTS AND AGREES NOT TO SUFFER OR PERMIT SAID PREMISES, OR
ANY PART THEREOF TO BE USED IN ANY MANNER THAT WILL INJURE OR IMPAIR THE
STRUCTURAL STRENGTH OF SAID BUILDING, AND NOT TO SUFFER OR PERMIT TO BE
INSTALLED IN SAID PREMISES, ANY MACHINERY OR APPARATUS, THE WEIGHT OR
VIBRATION OF WHICH WILL TEND TO INJURE OR IMPAIR THE STRUCTURAL STRENGTH OF
SAID BUILDING.
17. SUCCESSORS. Subject to the aforementioned restrictions on
assignment of this lease on the part of Tenant, the words "Landlord" and
"Tenant" as used herein include, apply to, and bind and benefit the heirs,
executors, administrators, assigns and successors of Landlord and Tenant. In
the event of any change of name, Tenant agrees to furnish Landlord with a
change of business or corporate name with appropriate supporting
documentation.
18. CO-TENANTS. All persons comprising Tenant, together with all
assignees and Subtenants, should Landlord elect to treat said assignees and
Subtenants as Tenants, are to be held and hereby agree to be held jointly and
severally responsible for the payment of rent and the faithful performance of
all the terms, covenants and conditions of this lease. Landlord shall have
the right to proceed against any person liable under this lease without the
necessity of first proceeding against any other person and without first
pursuing any other remedy. Payment or refund by Landlord to any person who is
one of the Tenants hereunder of any sums, including but not limited to the
security deposit due under this lease, shall constitute payment or refund to
any persons comprising Tenant.
19. NON-LIABILITY OF LANDLORD. Except in the event of Landlord's
negligence or willful misconduct, Landlord shall not be liable to Tenant, or
to any other person or persons whomsoever, and Tenant hereby waives any and
all claims for any damages to the leased premises or for or on account of any
loss, damage, theft, injury to any person or property in or about said
premises, or the building of which the demised premises are a part, or the
approaches
5
or entrances thereto, or on the streets, sidewalks, parking areas or
corridors thereof, caused or occasioned by said premises being out of repair,
by defects in said building or said premises or equipment contained therein,
including, but not limited to, any security system located in or about the
demised premises whether or not installed by Landlord, or by the failure to
keep the same in good order and repair, or by fire, gas, water, electricity,
failure or malfunction of the air-conditioning, or by the breaking,
overflowing or leaking of roofs, pipes, or walls of said building, or for any
other damage or injury caused by any acts or events whatsoever beyond the
control of Landlord, including, but not limited to, the acts and omissions of
other Tenants and invitees of the building. Landlord shall not be liable and
Tenant hereby waives all claims for damages that may be caused by Landlord in
re-entering and taking possession of the premises as herein provided.
20. INCREASE OF TAXES AND OPERATING COSTS. Tenant shall pay all taxes
assessed during the term of this lease against Tenant's personal property and
trade fixtures and against tenant improvements which exceed the building
standard tenant improvements whether installed by Landlord or by Tenant, or
in Tenant's possession in, upon or about the demised premises. Tenant shall
also pay gross receipts tax or any excise or other taxes or licenses on or
measured by or allocable to the rent payable hereunder (whether charged to
Landlord or to Tenant, or to either or both of them, and whether or not now
customary or within the contemplation of the parties hereto). In the event
any such taxes or licenses shall be or have been imposed against the Landlord
or the real property of which the demised premises forms a part, then the
amount of such taxes shall be paid by Tenant, as additional rent upon demand
for payment by Landlord. Said sum shall be payable in advance in equal
monthly installments based upon Landlord's estimate of the total amount due.
Said estimated monthly payments shall be adjusted annually to the actual tax
or license due by payment by Tenant or credit by Landlord of any difference.
If, (a) in any property tax fiscal year during the term of this lease
Taxes shall be increased above the Taxes for the base fiscal year, and/or (b)
if in any calendar year during the term of this lease Operating Costs shall
be increased above those in effect during the base year, both as hereinafter
defined, Tenant shall pay to Landlord, upon receipt of a statement therefor
and in the manner hereinafter set forth, as additional rent, 24.82% of the
amount of such increase in Taxes and 24.82% of the amount of increase in
Operating Costs.
A. DEFINITION. (1) "Taxes" shall mean taxes and assessments upon
or with respect to the building of which the demises premises forms a part,
ancillary parking facilities servicing the building, and land upon which they
are located including but not limited to drive-ways, landscaped areas and
courtyard entrance areas (in this Article collectively referred to as the
"land and/or improvements"), imposed by Federal, State or local governments.
If, because of any change in the method of taxation of real estate, any tax
or assessment is imposed upon Landlord or upon the owner of the land and/or
improvements, or upon or with respect to the land and/or improvements or the
rents or income therefrom, in substitution of or in lieu of any tax or
assessment which would otherwise be a real estate tax, such other tax or
assessment shall be deemed to be a real estate tax. In case there shall be a
reduction of the assessed valuation on the land and/or improvements for any
fiscal year which affects the taxes in any year for which a rent adjustment
shall have been made, the rent adjustment shall be recalculated on the basis
of the revised assessed valuation and Landlord will credit against the rent
next becoming due from Tenant such sums as may be due to Tenant by reason of
the recalculation, less the expenses and costs incurred in effecting such
reduction, including but not limited to attorneys fees, Property Tax
Consultants fee, and other professional fees provided that such rent
adjustment shall not reduce the rent payable hereunder below the basic
monthly rent payable as set forth in Article 2 of this lease. DURING THE
FIRST FIVE (5) YEARS OF THE LEASE TERM, "TAXES" SHALL NOT INCLUDE ANY INCREASE
IN PROPERTY TAXES RESULTING FROM ANY TRANSFER OR CONVEYANCE OF THE REALTY OF
WHICH THE DEMISED PREMISES FORMS A PART OR FROM ANY TRANSFER OR CONVEYANCE OF
ANY OWNERSHIP INTEREST IN ANY ENTITY OWNING SAID REALTY OR ANY PART THEREOF.
DURING THE LAST FIVE (5) YEARS OF THE LEASE TERM, "Taxes" shall include any
property taxes resulting from any transfer or conveyance of the realty of
which the demised premises forms a part or from any transfer or conveyance of
any ownership interest in any entity owning said realty or any part thereof,
EVEN IF SAID TRANSFER OR CONVEYANCE OCCURS DURING THE FIRST FIVE (5) YEARS OF
THE LEASE TERM. (2) "Operating Costs" shall mean (a) wage and labor costs
applicable to persons engaged in the management, operations, maintenance,
overhaul, improvement or repair of the land and/or improvements, whether said
persons be employed by Landlord or by an independent contractor, with whom
Landlord shall have contracted or may contract for such services. It is
hereby understood that any increase or decrease in the hours of employment or
the number of paid holidays, or vacation days, social security taxes,
unemployment insurance taxes and the costs, if any, of providing disability,
hospitalization, medical welfare, pension, retirement or other employee
benefits imposed by law or by any collective bargaining agreement, or any
voluntary employee benefit plans, applicable with respect to such employees,
shall correspondingly affect the wage and labor costs; and (b) cost of
utilities, fuel, supplies, all insurance, service contracts, improvements
(excluding the interior of tenant spaces) of or on the land and/or
improvements, amortized over the useful life of such improvements in
accordance with generally accepted accounting principles; and (c) such other
items as are customarily included in the cost of managing (including but not
limited to management fees), operating (including but not limited to ground
rent), maintaining (including but not limited to cleaning and janitorial
services), overhauling, improving and repairing the land and/or improvements
in accordance with generally accepted accounting or management principles or
practices.
Notwithstanding anything to the contrary in the definition of 'Operating
Costs,' Operating Costs shall not include the following:
(i) Any ground lease rental (but rental and other access fees on the
access tunnel to the Pershing Square Garage are included in operating costs);
(ii) Capital expenditures required by Landlord's failure to comply with
laws enacted on or before the date the Building's Temporary Certificate of
Occupancy is validly issued;
(iii) Costs incurred by Landlord with respect to goods and services
(including utilities sold and supplied to tenants and occupants of the
Building) to the extent that Landlord is entitled to reimbursement for such
costs;
(iv) Costs incurred by Landlord for the repair of damage to the Building
to the extent that Landlord is reimbursed by insurance proceeds;
(v) Costs, including permit, license and inspection costs, incurred with
respect to the installation of tenant improvements made for new tenants in
the Building or incurred in renovating or otherwise improving, decorating,
painting or redecorating vacant suites for tenants or other occupants of the
Building;
(vi) Depreciation and amortization (except as otherwise provided herein
to be includable in operating expenses);
(vii) Leasing commissions, attorneys' fees, and other costs and expenses
incurred in connection with negotiations or disputes with present or
prospective tenants or other occupants of the Building;
(viii) Wages incurred in connection with the operation of the parking
structure;
(ix) Costs of a capital nature, including without limitation, costs
incurred by Landlord for alterations which are considered capital
improvements, (but capital repairs and capital replacements, and capital
equipment and capital tools purchased by Landlord to enable Landlord to
supply services Landlord might otherwise contract for with a third party,
shall be included in operating expenses in accordance with generally accepted
accounting principles, consistently applied);
(x) Expenses in connection with services or other benefits which are not
provided to Tenant or for which Tenant is charged for directly or which are
selectively provided to another tenant or occupant of the Building;
(xi) Interest, points and fees on debt or amortization on any mortgage
or mortgages encumbering the Building or the land on which the Building
6
is located;
(xii) Expenses and costs not normally, in accordance with generally
accepting accounting principles, included in Operating Costs by landlords of
first-class institutional office Buildings;
(xiii) Advertising and promotional expenditures;
(xiv) Any bad debt loss, rent loss, or reserves for bad debts or rent
loss;
The following shall also be excluded from the taxes and operating costs:
Federal and State income taxes imposed on Landlord's net income and any and
all costs of any expenses to procure tenants for the building, including but
not limited to brokerage commissions, legal fees, and remodeling costs of
suites. (3) "Base Year" shall mean (a) for computation of Tax increases, the
fiscal tax year ended June 30th, 1997, and (b) for computation of Operating
Cost increases, the calendar year 1997. (4) "Subsequent Year" shall mean each
and every tax or calendar year, as the case may be, following the base year
falling wholly or partly within the term of this lease.
B. STATEMENTS FOR TENANT. On or about the lst day of April, in
each and every Subsequent Year, and within ninety (90) days after the
expiration or earlier termination of the term of this lease, Landlord will
furnish to Tenant a comparative statement which shall show a comparison of
all pertinent costs, either actual or estimated, and information applicable
to the Taxes in the Base Year and in the current tax year and applicable to
Operating Costs in the Base Year and in the calendar year preceding the year
in which the comparative statement is submitted, and the amount, if any, of
the increase in Taxes and Operating Costs and the amount thereof to be paid
by Tenant. In the event that the Building is not at least ninety-five percent
(95%) occupied during any Base Year or Subsequent Year, then the costs for
such year, either actual or estimated, shall be adjusted and increased to
reflect what expenses would have been, had such occupancy been ninety-five
percent (95%) during such entire year. The failure of Landlord to furnish a
comparative statement for any year in accordance with this Paragraph B shall
be without prejudice to the right of Landlord to furnish comparative
statements in subsequent years. In the event that Landlord shall for any
reason, be unable to furnish a comparative statement on or about April lst of
any year, or within ninety (90) days after the expiration or earlier
termination of this lease, Landlord may furnish such statement as soon
thereafter as practicable, with the same force and effect as a comparative
statement would have had, if delivered as aforesaid.
C. PAYMENT OF INCREASE IN RENT. (1) The payment of any additional
rent on account of Taxes and Operating Cost increases, pursuant to the
provisions of this Article 20 shall be made as follows: On the first day of
the month following the furnishing of a comparative statement, Tenant shall
pay to landlord as additional rent (a) a sum equal to 1/12th of Tenant's
share of tax increase multiplied by the number of months then elapsed from
the date commencing with the lst day of the current fiscal tax year up to the
date of the comparative statement (less any payments made in advance under
the last previous comparative statement submitted, if any), plus (b) a sum
equal to 1/12th of Tenant's share of Operating Costs increase multiplied by
the number of months then elapsed from the date commencing with the first day
of the preceding calendar year up to the date of the comparative statement
(less any payments made in advance under the last previous comparative
statement submitted, if any), plus (c) in advance, 1/12th of such share of
both Tax and Operating Cost increases with respect to the then current month,
and each month thereafter as additional rent until a different comparative
statement shall be submitted as above provided. (2) When the next comparative
statement is submitted by Landlord to Tenant, in the event that such
comparative statement shall show an increase in Taxes and/or Operating Costs
which shall be different from the increase paid or which was to be paid in
advance under the last previous comparative statement, then the additional
rent that had been or was to be paid in advance on account of Taxes and
Operating Cost increases, shall be increased or decreased accordingly. (3)
The additional rent due to Landlord or any credit due to Tenant, as disclosed
by the comparative statement furnished Tenant, shall be paid or credited
within Ten (10) days after the furnishing of such comparative statement. (4)
In the Event Tenant should dispute any cost items in any comparative
statement furnished by Landlord pursuant to this Article, Landlord and Tenant
specifically agree that provided Tenant is not otherwise in default in the
payment of the basic monthly rent under this lease and Tenant first deposits
with Landlord the total sum in dispute hereunder, the cost items in dispute
shall be submitted to an independent Certified Public Accountant engaged by
Landlord and reasonably approved by Tenant, for audit and verification of the
cost items disputed, and the finding and determination of said independent
Certified Public Accountant, shall be deemed conclusively correct, final and
binding between parties hereto without further remedy or recourse to legal
proceedings. In the event such audit discloses that the aggregate of the true
amount of such cost items as verified is within three per cent (3%) of the
aggregate items disputed, Tenant shall pay the cost of such audit, which
shall be in accordance with the reasonable charges generally prevailing for
such work. Sums payable under this Article are deemed independent additional
rental and are payable in addition to the rental specified in Article 2 of
this lease, any guaranteed minimum monthly rental, and any percentage rental
payable under this lease.
D. ARBITRATION. Provided Tenant is not otherwise in default in
the payment of the basic monthly rent under this lease, the interpretation,
construction, performance, or breach of this Article 20, may be settled by
arbitration pursuant to the rules and regulations of the American Arbitration
Association. Either party requesting arbitration under this Article 20 shall
make a demand on the other party by registered or certified mail with a copy
to the American Arbitration Association. It is a condition precedent to
Tenant's right to arbitration that Tenant first deposit with Landlord the
total amount of the sum in dispute. The arbitration shall take place as
noticed by the American Arbitration Association regardless of whether one of
the parties fails or refuses to participate. In no event shall any sum
payable hereunder be withheld by Tenant pending completion of such
arbitration.
21. GENDER. In this lease, whenever the context so requires, the
masculine gender herein used shall include the feminine or neuter and the
singular number shall include the plural. The captions set forth in the
various Articles of this lease am for identification and convenience only and
am not intended to, and shall not be deemed to limit or expand the contents
of the respective Article. If Tenant is a corporation, Tenant agrees to
provide Landlord, upon execution of this lease by Tenant, with a notarized
copy of a corporate resolution authorizing the Tenant corporation to execute
this lease and any appurtenant documents.
22. SUBORDINATION. Tenant expressly agrees that, at the sole option of
Landlord, this lease shall be either subject and subordinate, or paramount,
to all ground or underlying leases, mortgages, Deeds of Trust, or any other
encumbrances now placed or which may be placed in the future upon the real
property of which the demised premises are a part by the owners thereof, and
to all renewals, modifications, replacements or extensions thereof. And
Tenant further agrees that, whenever requested to do so by Landlord, Tenant
will execute, sign and deliver any documents required to effectuate such
subordination or superiority. Tenant shall upon request from Landlord,
execute and deliver to Landlord any certificate or other instrument stating
the date this lease will terminate, the date to which rent has been paid,
that this lease is in full force and effect without modification, and that
Tenant has no rights of deduction or offset hereunder or, if this lease has
been modified or if Tenant claims a deduction or offset hereunder, stating
the effect of such modification and/or the claimed deduction or offset.
Tenant hereby irrevocably constitutes and appoints Landlord as Tenants'
attorney in fact to execute (and to deliver to any third party) any documents
required to effect such subordination or superiority and nay such certificate
or instrument for and on behalf of Tenant, if Tenant shall have failed to do
so within ten (10) days after request therefore by Landlord, and in such
event Landlord shall be conclusively deemed not in
7
default under this lease. Any right, either expressed or implied, to quiet
enjoyment of the premises which Tenant may have under this lease shall be
subject to any subordination of this lease under this Article.
Notwithstanding anything to the contrary in the foregoing, Lanldord
agrees that it shall reasonably cooperate with and assist Tenant in Tenant's
obtaining a lender's standard form Non-Disturbance Agreement by requesting
such an agreement from the lender on behalf of Tenant. Any and all costs and
expenses incurred in obtaining a Non-Disturbance Agreement shall be Tenant's
sole responsibility, including but not limited to any fees or costs imposed
by the lender and any and all attorneys' fees incurred by Tenant or Landlord.
Any negotiations or modifications of lender's standard form Non-Disturbance
Agreement shall be Tenant's sole responsibility.
23. DELAY IN OCCUPANCY. Tenant, agrees that, in the event Landlord does
not deliver to Tenant timely possession of the demised premises at the
commencement of the term, due to failure of a previous tenant to promptly
vacate the premises, or due to delays of Landlord or its contractor in
completing the remodeling of the premises, or due to any other delays,
Landlord shall not be liable for any damage caused thereby; nor shall this
lease be void or voidable if possession is given to Tenant within one hundred
twenty (120) days after the date set for commencement of this lease, but in
no event shall Tenant be liable for rent until such time as Landlord offers
to deliver possession of said premises to Tenant. However, the term hereof
shall NOT be extended by such delay. If Tenant, with Landlord's consent,
takes possession of the demised premises prior to the commencement of this
lease, then Tenant shall be subject to all the covenants and conditions
hereof and shall pay rent for the period ending with the commencement of said
term at the monthly rate prescribed for the first month of the said term. In
the event that the delay in delivering to Tenant possession of said premises
at the commencement of said term is caused by Tenant, rentals shall
nevertheless commence on the date set out in this lease for the commencement
of the term of this lease.
24. CONDITIONS OF COVENANTS. Each and all of the provisions of this
lease are conditions precedent to be faithfully and fully performed and
observed by Tenant to entitle Tenant to obtain and continue in possession of
the premises hereunder; said conditions are also covenants on the part of
Tenant and time of performance of each is of essence of this agreement.
25. ATTORNEYS' FEES. If any action or actions be commenced for the
breach of any covenants or conditions of this lease, or for any rent, or any
other action arising out of this lease, or for the possession of said
premises, or if arbitration of Article 20 is requested by either party
hereto, or if Landlord necessarily intervenes in or becomes a party, or is
made a party to, any action or actions accruing out of this lease in order to
protect is rights, then losing party will pay to prevailing party a
reasonable attorney's fee in such action or actions, which fee shall be fixed
by the court in such action. As a further inducement to Landlord to make this
lease and in consideration thereof, Landlord and Tenant covenant and agree
that in any action or proceeding arising out of, under or by virtue of this
lease, Landlord and Tenant do hereby waive trial by jury.
26. BUILDING RULES. Tenant covenants that Tenant, together with all
persons entering and/or occupying the demised premises shall keep and perform
each and all of the rules and regulations of the building hereinafter set
forth which are hereby referred to and made a part hereof. Landlord shall
have the right to amend said rules and to make other and different reasonable
rules and regulations as in Landlord's reasonable judgment may from time to
time be necessary for the management, safety, care and cleanliness of the
premises, and for the preservation of good order therein, as well as for the
convenience of other occupants and tenants therein. Such rules and
regulations may reasonably limit, restrict and regulate the privileges of
tenants in the said building, and all such rules and regulations so made by
Landlord, after notice thereof to Tenant, shall be binding upon Tenant and
become conditions of Tenant's tenancy and covenants on the part of and to be
performed by Tenant. Violation of any such rules and regulations may be
deemed a breach of this lease by Tenant. Landlord shall not be responsible to
Tenant or to any other person for the non-observance or violation of the
rules and regulations by any other tenant or person.
27. WAIVER. No modification, alteration or waiver of any term, covenant
or condition of this lease shall be valid unless in writing subscribed by the
Landlord or by any officer of Landlord authorized in writing. No waiver of a
breach of any covenant or condition shall be valid unless in writing
subscribed by the Landlord or by any officer of Landlord authorized in
writing. No waiver of a breach of any covenant or condition shall be
construed to be a waiver of any succeeding breach. No act, delay or omission
done, suffered or permitted by landlord shall be deemed to exhaust or impair
any right, remedy or power of Landlord hereunder. Landlord shall have the
right to accept any rental payment tendered by Tenant for lesser amounts than
the full rental due without waiver of the balance due from Tenant, and in
this regard Landlord shall have the right to deposit any checks tendered by
Tenant regardless of any restrictive notations or endorsements placed thereon
by Tenant or set forth in any accompanying transmittal without waiver of the
balance due Landlord. Landlord's acceptance of the keys to the premises shall
not constitute a surrender or termination of this lease. A surrender or
termination of this lease can only be effected by way of written agreement
between the parties. This agreement contains the entire contract between the
parties hereto, and there are no oral or other agreements between Tenant and
Landlord with regard to this lease, except those expressly set out herein,
and no representative or officer of Landlord has any power to change, modify
or make any other terms or representations whatsoever than those herein set
forth. Tenant hereby waives the provisions of Sections 1932, 1941, 1942 and
subdivision (4) of Section 1933 of the Civil Code of the State of California
and any and all other statutes or laws permitting a tenant to make repairs at
the expense of the landlord or to terminate a lease by reason of the
condition of the premises or any part thereof. Should any part, clause,
provision or condition of this lease be held to be void, invalid or
inoperative, such invalidity shall not affect any other clause, provision or
condition hereof, but the remainder of this lease shall be effective as
through such invalid clause, provision or condition had not been included
herein.
28. COVENANT BY TENANT. HAZARDOUS MATERIALS. Tenant covenants to hold
Landlord free and harmless from all loss or damage resulting from Tenant's
violation of any term or provision of this lease, including but not limited
to attorney fees and court costs.
Tenant further covenants to hold Landlord free and harmless from the
use, misuse or neglect of said premises or appurtenances and expressly
waives, in favor of Landlord, all claims arising out of any alleged defective
or unsafe condition thereof, unless the same was caused by the negligence or
willful misconduct of Landlord.
Tenant agrees to pay for all damages which may be caused to Landlord or
the building in which the demised premises are situated or to any tenant or
occupant thereof by any act or failure to act of Tenant or any of Tenant's
invitees, contractors, agents, guests, visitors or employees, and Tenant
further agrees not to use or suffer to be used the demised premises in any
manner which will increase the present rate of premium for insurance on said
building, or cause a cancellation of any insurance policy relating to said
building (Landlord acknowledges that Tenant's existing banking operations do
not violate this restriction on the use of the Premises), or keep or suffer
to be kept therein any gasoline, distillate, petroleum, hazardous substances
or explosive products. Tenant agrees during the entire term to take good care
of the demised premises and to keep the interior thereof in good order,
repair and condition, natural deterioration with careful use and injury by
fire, the elements and acts of God excepted.
Tenant and Landlord hereby represent and warrant that no real estate
broker nor any other person other than Landlord, its agents and employees,
has been involved in the securing and negotiation of this lease, nor is any
broker or any other person entitled to any commission, finder's fee, nor any
other
8
payment as a result of Tenant's execution of this lease.
Tenant shall not use, generate, manufacture, produce, store, treat or
dispose of on, under or about the Leased Premises or the Building, or any
part thereof, any pesticides, fungicides, solvents, herbicides, flammable
explosives, asbestos, radioactive materials, hazardous wastes, toxic
substances or related injurious materials, whether injurious by themselves or
in combination with other materials (collectively, "Hazardous Materials"). As
used in this Paragraph 7.C, Hazardous Materials shall include but not be
limited to substances defined as "hazardous substances", "hazardous
materials", or "toxic substances" in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C.
Section 9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801, et seq.; the Resource Conservation and Recovery Act; 42 U.S.C.
Section 6901 et seq.; and those substances defined as "hazardous wastes" in
Section 25117 of the California Health & Safety Code or as "hazardous
substances in section 20316 of the California Health and Safety Code; and in
the regulations adopted and publications promulgated pursuant to said laws.
California Health and Safety Code Section 25359.7 (b) requires any tenant of
real property who knows, or has reasonable cause to believe, that any release
of a hazardous substance has come to be located in, on or beneath such real
property to give written notice of such condition to the owner thereof.
Tenant shall comply with requirements of Section 25359.7 (b) and any
successor statute thereto and with all other statutes, laws, ordinances,
rules, regulations and orders of governmental authorities with respect to
hazardous substances.
Tenant shall indemnify, defend (by counsel reasonably acceptable to
Landlord), protect, and hold Landlord, and each of Landlord's partners,
employees, agents, attorneys, successors and assigns, free and harmless from
and against any and all claims, liabilities, penalties, forfeitures, losses
or expenses (including attorneys' fees) or death of or injury to any person
or damage to any property whatsoever, arising from or caused in whole or in
part, directly or indirectly by (a) Tenant's possession in, on, under or
about the Leased Premises or discharge in or from the Leased Premises of any
Hazardous Materials or Tenant's use, analysis, storage, transportation,
disposal, release, threatened release, discharge or generation of Hazardous
Materials to, in, on, under, about or from the Leased premises or the
Building, or (b) Tenant's failure to comply with any Federal, State, County,
Municipal, local or other law, rule, ordinance and regulation now or
hereafter in effect relating to the industrial hygiene, environmental
protection, use, analysis, generation, manufacture, purchase, transportation,
storage and disposal of hazardous, toxic, contaminated, polluting and
radioactive matter, substances and wastes. Tenant's obligations hereunder
shall include, without limitation, and whether foreseeable or unforeseeable,
all costs of any required or necessary repair, cleanup, detoxification or
decontamination of the Leased Premises or the Building, and the preparation
and implementation of any closure, remedial action or other required plans in
connection therewith, and shall survive the expiration or earlier termination
of this Lease. For purposes of the release and indemnity provisions hereof,
any acts or omissions of Tenant, or by employees, agents, assignees,
contractors or subcontractors of Tenant or others acting for or on behalf of
Tenant (whether or not they are negligent, intentional, willful or unlawful)
shall be strictly attributable to Tenant.
29. DEFAULT. A. It shall, at Landlord's option, be deemed a breach of
this lease if (1) Tenant defaults (a) in the making of any payment of money
pursuant to this lease, or (b) in fulfilling any other term, covenant,
condition, provision, or agreement of this lease if said default under this
Article 29 continues to exist at the expiration of THIRTY (30) days after
notice thereof given by Landlord to Tenant, or (2) (Intentionally deleted.
Any references to this subparagraph 2 in this Lease shall be deemed to refer
to subparagraph (3) which follows); (3) Tenant shall cease to occupy or
conduct business in Suite 100 and/or the Second Floor Premises during
customary banking hours, or if Tenant shall remove substantially all of
Tenant's furniture or furnishings therefrom, or (4) Tenant shall fail to move
into or take possession of demised premises within fifteen (15) days after
Landlord offers the premises for occupancy or (5) any execution or attachment
shall be issued against Tenant or any of Tenant's property or (6) the demised
premises shall be taken or occupied or attempted to be taken or occupied by
someone other than Tenant or (7) Tenant shall default with respect to any
other lease between (a) Landlord and Tenant, or (b) any parent company or
subsidiary company or affiliate or agent of Landlord or Tenant or (8) Tenant
assigns or otherwise transfers substantially all of the assets used in
connection with the business conducted in demised premises.
B. In the event that Landlord elects, pursuant to paragraph A of this
Article, to declare a breach of this lease, then Landlord shall have the
right to give Tenant FIFTEEN (15) days notice of intention to end the
term of this lease and thereupon, at the expiration of said FIFTEEN
(15) days, the term of this lease shall expire as fully and completely as if
that day were the day herein definitely fixed for the expiration of the term
hereof and Tenant shall then quit and surrender the demised premises to
Landlord, but Tenant shall remain liable as hereinafter provided. If Tenant
fails to so quit and surrender the demised premises as aforesaid, Landlord
shall have the right, without notice to re-enter demised premises and
dispossess Tenant and the legal representatives of Tenant and all other
occupants of demised premises by unlawful detainer or other summary
proceedings, or otherwise, and remove their effects and regain possession of
demised premises (but Landlord shall not be obligated to effect such removal).
C. In the event of any breach of this lease by Tenant (and regardless
of whether or not Tenant has abandoned the demised premises), this lease
shall not terminate unless Landlord, at Landlord's option, elects at any time
when Tenant is in breach of this lease to terminate Tenant's right to
possession as provided in Paragraph B and of this Article or, at Landlord's
further option, by the giving of any notice (including but not limited to any
notice preliminary or prerequisite to the bringing of legal proceedings in
unlawful detainer) terminating Tenant's right to possession. For so long as
this lease so continues in effect, Landlord may enforce all of Landlord's
rights and remedies under this lease, including the right to recover all rent
as it becomes due hereunder. For the purposes of this Paragraph C, the
following shall not constitute termination of Landlord's right to possession;
(1) acts of maintenance or preservation or efforts to relet demised premises,
or (2) the appointment of a receiver upon initiative of Landlord to protect
Landlord's interest under this lease.
D. In the event of termination of this lease or termination of
Tenant's right to possession (as the result of Tenant's breach of this lease
or pursuant to Article 30 (Bankruptcy), landlord shall have the right: (1) To
remove any and all persons and property from demised premises pursuant to
such rights and remedies as the laws of the State of California shall then
provide or permit, but Landlord shall not be obligated to effect such
removal. Such property may, at Landlord's option, be stored or otherwise
dealt with as such laws may then provide or permit, including but not limited
to the right of Landlord to store the same, or any part thereof, in a
warehouse or elsewhere at the expense and risk of and for the account of
Tenant. (2) To recover from Tenant damages which shall include but not be
limited to: (a) The worth, at the time of award, of the unpaid rent
(including but not limited to increases in rent pursuant to Article 20 even
if determined at a later date) which have been earned at the time of
termination; (b) The worth, at the time of award, by which the unpaid rent
(including but not limited to increases in rent pursuant to Article 20 even
if determined at a later date) which would have been earned after termination
until the time of award exceeds the amount of such rental loss that the
Tenant proves could have been reasonably avoided; (c) The worth, at the time
of award, of the amount by which the unpaid rent (including but not limited
to increases in rent pursuant to Article 20 even if determined at a later
date) for the balance of the term after the time of award exceeds the amount
of such rental loss that Tenant proves could have been reasonably avoided for
the same period; and (d) Such reasonable expenses as Landlord may incur for
legal actions, attorney's fees, court costs, for reletting (including but not
limited to advertising), brokerage fees, for putting demised premises in good
order, condition and repair, for preparing the same for reletting (including
but not limited to any remodeling, renovations or alterations of the
premises), and for keeping demised premises in good order, condition and
repair (before and after Landlord has prepared the same for reletting), and
all reasonable costs (including but not limited to attorneys' and receivers'
fees) incurred in connection with the appointment of and performance by any
receiver and any other amount necessary to compensate Landlord for all the
detriment approximately caused by Tenant's failure to perform these
obligations under the lease or which in the ordinary course of things would
be likely to result therefrom. The "worth of at the time or award" shall
include interest at the maximum legal rate. (3) To enforce, to the extent
permitted by the laws of the State of California then in force
9
and effect, any other rights or remedies set forth in this lease or otherwise
applicable hereto by operation of law or contract.
E. In the event of a breach by Tenant of any of the terms, covenants,
conditions, provisions or agreements of this lease Landlord shall
additionally have the right of injunction. Mention in this lease of any
particular remedy shall not preclude Landlord from any other remedy, at law
or in equity.
F. Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future law in the event of Tenant's being
evicted or dispossessed or any cause, or in the event of Landlord's obtaining
possession of demised premises, by reason of the violation by Tenant of any
of the terms, covenants, conditions, provisions or agreements of this lease,
or otherwise.
G. Any amount due to Landlord not paid when due shall bear interest at
the maximum rate then allowable by law from the date due. On any amounts not
paid within twenty-five (25) days from the date due, Tenant shall pay
Landlord a late charge of five (5%) per month for Landlord's administrative
expenses, plus the amount of legal costs and attorney's fees incurred by
Landlord prior to trial, for the collection of such delinquent rent. Landlord
shall have the right to apply the first monies received from Tenant to late
charges and interest. Payment of such interest and late charges shall not
excuse or cure any default by Tenant under this lease. Interest shall not be
payable on late charges.
30. BANKRUPTCY. If, at any time during the term of this lease, in any
judicial action proceeding in any court against Tenant, a receiver or other
officer or agent abe appointed to take charge of said premises or the
business conducted therein and shall be in possession thereof, or if this
lease or the interest or estate created thereby vest in any other person or
persons by operation of law or otherwise, except by consent of Landlord, or
in the event of any action taken by or against Tenant under the federal
bankruptcy laws or other applicable statutes of the United States, or any
state, or if Tenant shall make an assignment for the benefit of creditors, or
if an attachment or execution is levied upon Tenant's property or interest
under this lease which is not satisfied or released within thirty (30) days
thereafter, the occurrence of any such event shall be deemed to be a breach
of this lease by Tenant, and Landlord shall have the rights herein provided
in the event of any such breach, including the right, at Landlord's option,
to terminate this lease immediately and enter said premises and remove all
persons and property therefrom. Notwithstanding the foregoing, in the event
Tenant is ever subjected to the jurisdiction of the Federal Deposit Insurance
Corporation or any other federal or state banking authority and pursuant
thereto Tenant or such authority continues to pay the rent pursuant ot this
Lease, then this Lease shall not terminate pursuant to the provisions of this
Article so long as the rental and other provisions of this Lease are
performed.
31. ACCEPTANCE. Tenant agrees that, upon substantial completion of said
premises and/or upon Landlord's offer to deliver the same for occupancy by
Tenant, Tenant will accept said premises and take possession thereof. The
entry of the Tenant into the possession of the demised premises shall be
conclusive acknowledgement on Tenant's part of Tenant's acceptance of the
premises and that they are in good and tenantable condition, except as to
latent defects not apparent by reasonable visual inspection and reasonable
punchlist items. At the expiration or sooner termination of this Lease,
Tenant shall deliver the demised premises to Landlord, clean and in a state
of repair in which said premise existed at the commencement of the term
hereof with tenant improvements accepted by Landlord under the provisions of
Article 7, reasonable wear and tear excepted. There are no representations or
warranties of Landlord as to the condition or state of repair of the premises
except as expressly stated in this lease. Tenant's failure to accept the
premises upon Landlord's offer of delivery shall in no way postpone the
commencement of this lease or Tenant's obligation to pay rental hereunder.
32. COMPLIANCE. Tenant shall, at Tenant's expense, comply with all laws,
rules, orders, ordinances, regulations and requirements or municipal, state
and federal governments, boards and authorities relative to the Tenant's
occupancy of the demised premises or to the business to be conducted therein.
Landlord shall, at Landlord's expense, comply with all laws, rules, orders,
ordinances, regulations and requirements or municipal, state and federal
governments, boards and authorities (herein collectively referred to as the
"requirements and authorities") relative to the leasing and general
operations of the Building, exclusive of the requirements and authorities
relative to each and all of the tenant's occupancies of premises within the
Building or to the business's conducted by such tenants. Tenant will keep the
said premises in a clean and orderly condition and in accordance with all
laws and ordinances and the direction of all public officers, and, as far as
reasonably possible, shall keep all immoral and disreputable persons out of
said premises to the end that the reputation of the demised premises and the
said building as a first class office building may be preserved. No trade,
occupation, game or business shall be conducted upon said premises which
shall be unlawful or of unethical character. The demised premises shall not
be used for cooking (except only for incidental microwave cooking of
employees lunch and snacks in a non-public area of the Premises), lodging,
sleeping or for immoral purposes and no objectionable noise, vibration or
odor shall be permitted to escape from said premises. Tenant shall not
install nor maintain vending machines on the demised premises without
Landlord's prior written permission, nor engage in any activity which
violates landlord's Certificate of Occupancy relating thereto.
33. CALIFORNIA LAW. The provisions of this lease shall be construed and
interpreted in accordance with the laws of the State of California. The
language in all parts of this lease shall be construed in all cases according
to its fair meaning and not strictly for or against either Landlord or
Tenant. This lease shall be deemed to be jointly prepared by both of the
parties hereto, and any ambiguities or uncertainties herein shall not be
construed for or against either of the parties hereto.
34. TRANSFER OF LANDLORD'S INTEREST. The term "Landlord" as used in
this lease, insofar as covenants or obligations on the part of Landlord are
concerned, shall be limited to mean and include only the owner, or owners, at
the time in question, of the fee or the ground lease on the demised premises
and in the event of any transfer of the title to such Proprietary interest,
the Landlord named herein (and in case of any subsequent transfers or
conveyances, the then Grantor), their employees and agents shall be
automatically freed and relieved from and after the date of such transfer or
conveyance of all personal liability with respect to the performance of any
covenants or obligations on the part of Landlord contained in this lease
thereafter to be performed; provided, that any funds in the hands of such
Landlord or the then Grantor at the time of such transfer in which Tenant has
an interest shall be turned over to the Grantee, and any amount then due and
payable to Tenant by Landlord or the then Grantor under any provision of this
lease shall be paid to Tenant, it being intended hereby that the covenants
and obligations contained in this lease on the part of Landlord shall, subject
as aforesaid, be binding upon Landlord, its successors and assigns only
during and in respect to their successive periods of ownership. Any liability
that arises from Landlord's negligence during its period of ownership and
that remains unsatisfied at the expiration of said period of ownership, shall
survive the expiration of the period of ownership.
35. FORCE MAJEURE. Any act of the Landlord or Tenant required by this
lease to be done within a specified time (except for the payment of rent and
other sums deemed rent) shall be subject to excusable delays. The term
"excusable delays" shall be deemed to mean any delays caused by or due to
fire, the elements of nature, casualties, strikes, lockouts or other labor
troubles, governmental regulations, shortages of material, or supplies, or
any cause, whether similar or dissimilar to the foregoing beyond the control
of the performing party which affects the performance of that party. Neither
party shall be liable to the other, in damages or otherwise for any such
excusable delays. Landlord shall not be deemed in default hereunder, for any
failure, suspension, stoppage or interruption of any public utility services,
air conditioning or elevator service, caused by repairs, replacements, riots,
strikes, labor disputes, fire explosion, earthquake, floods, rain storms, war,
insurrection failure of any public utility to furnish service for any reason
whatsoever (including, but not limited to any rationing or reduction in
service due to any Energy or Natural Resource Conservation Act or Agency, or
any Environmental Protection Act or Agency,
10
or any other similar or dissimilar act, statute, ordinance, regulation or
directive of any federal, state, county, municipality, or any other
governmental or quasi-governmental agency, or of any public utility or any
other public or private agency or entity vested with the power to curtail
service as a means of conserving or controlling the consumption of water,
gas, electricity or any other utility, or any other energy or energy product,
or natural resource, or any product or service), act of God, accidents or any
other similar or dissimilar causes beyond the reasonable control of Landlord;
nor shall such failure or reduction constitute an eviction. There shall be no
abatements of rent by reason of any such failure or reduction.
36. TAXES, ASSESSMENTS AND OTHER CHARGES. In addition to rental,
operating cost increases and any charges for utilities or services payable
under this lease, Landlord may at any time during the term of this agreement
increase the service or utilities charges payable as additional rent to
reflect any and all expenses costs (including but not limited to costs to
secure any alternate source of utilities, energy, products or service),
improvements, taxes, assessments, charges, subcharges or penalties which
Landlord is subject to or required to make after the execution date of this
lease pursuant to any Energy or Natural Resource Conservation Act or Agency,
or any Environmental Protection Act or Agency, or any other similar or
dissimilar act, statute, ordinance, regulation or directive of any federal,
state, county, municipality, or any other governmental or quasi-governmental
agency, or any public utility of any other public or private agency or entity
vested with the power to impose taxes, assessments, charges, surcharges or
penalties as a means of conserving or controlling the consumption of water,
gas, electricity or any other utility, or any other energy or energy product,
or natural resource, or any product or service, whether or not such taxes,
assessments, charges, surcharges or penalties are based upon or applied
(either directly or indirectly) to any utility, product or service charge.
Such increase to Tenant shall be based upon a proportion of the sum due as
determined by Landlord, to be reasonably applicable to Tenant and shall be
due and payable within ten (10) days after billing by Landlord. In any event,
Tenant shall pay all such taxes, assessments, expenses, charges, or surcharges
that are imposed directly against Tenant.
Tenant shall pay Tenant's Percentage Share (as specified in Article 20)
of any special assessment levied upon the building, improvements or real
property upon which the demised premises are located by the Los Angeles Rapid
Transit District (or any other governmental entity having the authority to
impose such assessment) (the "Metrorail Assessment"). Tenant shall pay
Tenant's Percentage Share of the Metrorail Assessment in equal monthly
installments as the same are billed by Landlord to Tenant. Landlord may
require that the final installment be due and payable on the first day of the
month in which the Metrorail Assessment is due. Tenant's obligation requires
Tenant to pay Tenant's Percentage Share of the entire Metrorail Assessment
for each calendar year of the Term and is not limited to Tenant's Percentage
Share of any annual increases made, from time to time, to the Metrorail
Assessment. If the bill for the Metrorail Assessment specifies that it
applies to a given period of time, Tenant's obligations shall be amortized to
the extent the Term of this Lease does not include all such period.
Tenant shall pay Tenant's Percentage Share (as specified in Article 20)
of any special assessment, tax, levy, surcharge or fee levied upon the
building, improvements or Real Property by the City or County of Los Angeles
in connection with the development, improvement or beautification of Pershing
Square or the area immediately adjacent thereto (the "Pershing Square
Assessment"). Tenant's obligation requires Tenant to pay Tenant's Percentage
Share of the entire Pershing Square Assessment for each calendar year of the
Term and is not limited to Tenant's Percentage Share of any annual increases
made, from time to time, to the Pershing Square Assessment. If the bill for
the Pershing Square Assessment specifies that it applies to a given period of
time, Tenant's obligations shall be amortized to the extent the Term of this
Lease does not include all such period.
37.
38. CONDITION OF THE PREMISES. Tenant agrees that the demised premises
are being leased in an "as is" condition and Landlord is not obligated to
perform any work of any kind to prepare the premises for Tenant's occupancy,
except that upon the written request of Tenant AT ANY ONE TIME FOR EACH FLOOR
DURING THE LEASE TERM, LANDLORD AT ITS COST AND EXPENSE SHALL REPAINT ALL
PAINTED SURFACES AND RECARPET ALL CARPETED SURFACES IN THE PREMISES LOCATED
ON THE LST, 2ND, 9TH AND 20TH FLOORS WITH LANDLORD'S BUILDING STANDARD CARPET
AND PAINT IN THE SAME OR SIMILAR COLORS. ALL ADDITIONAL WORK AND ANY
OVER-STANDARD MATERIALS SHALL BE FURNISHED AND/OR PAID FOR AS AN EXTRA BY
TENANT AND SHALL BE PERFORMED BY LANDLORD OR IN ACCORDANCE WITH THE
PROVISIONS OF ARTICLE 7 OF THIS LEASE. To the extent possible, Landlord shall
endeavor to perform the aforesaid work outside Tenant's business hours, in
the evenings and on weekends.
The area of the leased premises is based upon the rentable area, which
includes Tenant's proportionate share of the public elevator lobby, toilet
rooms, corridors and other public areas on the floor on which the demised
premises are located. A Lease of a full floor includes the entire public area
on the floor.
11
39. FIRE PROOFING AND INSULATING MATERIALS. ABATEMENT. Tenant
acknowledges that certain fire-proofing and insulating materials used in the
construction of the Building contain asbestos and other hazardous substances
(collectively "asbestos"). If any governmental entity promulgates or revises
a statute, ordinance, code, rule or regulation, or imposes mandatory or
voluntary controls or guidelines with respect to such asbestos-containing
materials or if Landlord otherwise so elects, Landlord may, in its sole and
reasonable discretion, comply with such mandatory or voluntary controls or
guidelines, or elect to make such alterations or remove such
asbestos-containing materials. Such compliance or the making of alterations,
and the removal of all or a portion of such asbestos containing materials,
whether in the Premises or elsewhere in the Building, shall not, in any event
constitute a breach by Landlord of any provision of this Lease, relieve
Tenant of the obligation to pay any Rent due under this Lease, constitute or
be construed as a constructive or other eviction of Tenant, or constitute or
be construed as a breach of Tenant's quiet enjoyment. In accordance with
Proposition 65 (Assembly Bill No. 3713) and the regulations promulgated
thereunder (California Health and Safety Code Sections 25249.6 et. seq.)
which require that persons subject to "environmental exposure" to certain
designated chemicals, such as asbestos, receive warning, you are advised that:
WARNING: THE BUILDING CONTAINS ASBESTOS
A CHEMICAL KNOWN TO THE STATE OF
CALIFORNIA TO CAUSE CANCER.
Tenant also acknowledges that Landlord has promulgated building
regulations and procedures governing the manner in which Tenant may undertake
alterations, addition, modifications and improvements to the Premises in
those areas where asbestos-containing materials may be located, and such
regulations and procedures may be modified, amended or supplemented from time
to time. Prior to undertaking ANY physical work in or around the Premises,
Tenant shall notify Landlord in writing, of the exact nature and location of
the proposed work and shall promptly supply such additional information
regarding the proposed work as Landlord shall request. After receipt of
Tenant's notice, Landlord shall, to the extent appropriate, supply Tenant
with the Building regulations and procedures for working in areas where there
is a risk of coming into contact with asbestos-containing materials. Tenant
shall, at Tenant's sole cost and expense, strictly comply with all such
Building regulations and procedures established by Landlord and with all
applicable governmental statutes, ordinances, codes, rules, regulations,
restrictions and guidelines (herein "governmental controls"). Landlord shall
have the right (but not the duty or obligation at all times to monitor the
work for compliance with the Building regulations and procedures and
governmental controls. If Landlord determines that any of the Building
regulations or procedures or governmental controls are not being strictly
complied with, Landlord may immediately require the cessation of all work
being performed in or around the Premises until such time as Landlord is
satisfied that the applicable regulations, procedures and governmental
controls will be observed. Landlord's monitoring of any work in or around the
Premises shall not be deemed a certification by Landlord of compliance with
any applicable governmental control or of the building regulations and
procedures or a waiver by Landlord of its right to require strict compliance
by Tenant with such Building regulations and procedures and governmental
controls, nor shall such monitoring relieve Tenant from any of its
responsibilities and liabilities relating to such work.
40. ABATEMENT OF FIREPROOFING AND INSULATING MATERIALS. Landlord and
Tenant shall cooperate with and accommodate one another in the performance of
the following abatement work by Landlord during the term of this Lease:
A. 2ND FLOOR ABATEMENT. At any time during the Term of this Lease,
Landlord shall have the right (but not the obligation) upon sixty (60) days
prior written notice to Tenant to abate any asbestos containing materials
located in the 2nd Floor Premises. The abatement work shall be performed at
night and on weekends under the supervision of a certified industrial
hygienist, either (at the option of Landlord) (a) in segments in individual
sections of the Premises as they are vacated, or (b) in the entire Premises.
If required by Landlord, Tenant shall temporarily relocate its employees to
unoccupied portions of the 3rd Floor Premises and/or other available areas of
Tenant's Premises and/or other unoccupied areas in the Building for which
Landlord will not charge any additional rent. Landlord shall pay the
reasonable costs of relocating Tenant's furniture to the temporary space and
back to the 2nd Floor Premises. Whether performed in segments or in the
entire Premises, the work shall be performed in a manner which will interfere
with Tenant's banking operations to the least extent reasonably possible, in
order to permit Tenant's banking staff to generally perform their duties
during normal business hours during the period of the abatement of the 2nd
Floor Premises. In either case, the areas of abatement will be sealed by
plastic barriers or other means as required, and the plastic barriers,
scaffolding and other accoutrements necessary for protection or inconvenient
to remove during the course of the work shall remain continuously in place
throughout the course of the work. Tenant shall continue to pay rent on the
entire 2nd Floor Premises throughout the period of the abatement work.
B. SUITE 100 ABATEMENT. At any time during the Term of this Lease,
Landlord shall have the right (but not the obligation) upon sixty (60) days
prior written notice to Tenant to abate any asbestos containing materials
located Suite 100 on the lst Floor. The abatement work shall be performed at
night and on weekends under the supervision of a certified industrial
hygienist in a manner which will interfere with Tenant's banking operations
to the least extent reasonably possible, in order to permit Tenant's branch
bank to generally remain open during normal business hours during the period
of the abatement. The areas of abatement will be sealed by plastic barriers
or other means as required. Plastic barriers, scaffolding and other
accoutrements necessary for protection or inconvenient to remove during the
course of the work shall remain continuously in place throughout the course of
the work. Tenant shall continue to pay rent on the entire lst Floor Premises
throughout the period of the abatement work.
41. BUILDING IDENTITY SIGN. During the Term of this Lease and any
extensions thereof, Tenant shall have the exclusive right to maintain the
existing signs on the top of the Building exterior identifying the name of
the Building as "City National Bank Building". Tenant shall be responsible
for all expenses relating to the operation and maintenance of the signs,
including but not limited to utilities, cleaning, repairs, permits,
insurance, taxes and for any damage to the Building occasioned by the signs.
Upon the expiration or termination of this Lease or of these sign rights,
Landlord shall have the right and option, exercisable by written notice to
tenant, to (a) require Tenant at its sole cost to remove the signs and repair
any damage to the Building occasioned by such installation or removal and
restore the Premises to original condition, or (b) leave the signs in place
and surrender them to the Landlord as Landlord's property under the terms of
this Lease, provided that Landlord shall thereupon modify said signs to no
longer read "City National Bank".
42. OPTION TO TERMINATE. Landlord hereby grants to Tenant a one-time
option to terminate this Lease on the 30th day of June 2004, but only upon
the following terms and conditions.
A. That Tenant is not in material default under any of the terms,
covenants and conditions of this Lease on the part of Tenant to be performed
both at the time of the exercise of the option and on the termination date.
B. That Tenant give Landlord twelve (12) months' prior written notice
of Tenant's election to exercise the option, such notice to be actually
received by Landlord at least twelve (12) months prior to date the option is
to take effect.
C. That Tenant pay to Landlord with the aforesaid notice the sum of
Three Hundred Eighty-Nine Thousand and No/100 Dollars ($389,000.00) as
12
consideration for this Lease termination.
D. That Tenant and all persons claiming under or through Tenant vacate
the demised premises not later than the termination date and return the
premises to Landlord in good condition, normal wear and tear excepted.
E. That all leasehold improvements which are Landlord's property under
this Lease remain in the premises as part of the realty as provided in
Article 7 and other provisions of this Lease. Tenant shall remove any
alterations or improvements required to be removed by Tenant under the terms
of this Lease and restore the premises as required not later than the
termination date.
F. That this option shall be self-operating and that, once exercised
by Tenant no further documentation by the parties hereto shall be necessary
in order to terminate this Lease.
G. That time is expressly made of the essence of this option.
43. OPTION TO EXTEND TERM. Landlord hereby grants to Tenant the right to
extend the term of this Lease for an additional five (5) year period
commencing upon the expiration of the initial ten (10) year term on December
31, 2006, but nevertheless, only upon the following terms and conditions:
A. That Tenant is not in material default under any of the terms,
covenants and conditions of this Lease on the part of Tenant to be performed
both at the time of the exercise of such option and at the commencement of
the extended term.
B. That Tenant give Landlord twelve (12) months' prior written notice
of Tenant's election to exercise such option, such notice to be actually
received by Landlord at least twelve (12) months prior to date the option is
to take effect.
C. That Tenant shall pay as rent during the extended term the fair
market rental value which is deemed to be the rental rate then being offered
to prospective tenants for new leases as of the date of the commencement of
the extended term for comparable premises in the City National Bank Building,
or if no comparable premises in the Building are on the market at that time,
the rate for comparable premises in comparable office Buildings in the
downtown Los Angeles area, provided that in no event shall the rent for the
extended term be less than the herein rental rate paid by Tenant for the
premises for the last month of the initial ten (10) year term of this Lease.
The determination of such fair market rental value shall take into
consideration all the elements which are generally and usually considered in
the real estate industry to establish a fair market rental value for
comparable premises, including but not limited to the size and location of
the premises, the quality and extent of the improvements existing in the
premises, operating cost and tax increases, cost of living and other rental
adjustments, the location of the premises in the Building, the floor height
of the premises and other economic factors generally allowed a tenant in such
market for comparable premises, such as a free rent allowance, provided that
the determination of fair market rental value shall not include any
imputation of monetary value to fair market rental factors not a constituent
part of the extension option, such as, for example, a reduction of rental for
a brokerage commission where Landlord has no obligation to pay such
commission, or a reduction for a relocation allowance, or a tenant
improvement allowance based on unimproved or raw space. In any event the fair
market rental value of the premises shall be determined by employing sound
business judgment and generally accepted appraisal practices, and shall be
established in accordance with Landlord's then standard leasing practices for
premises based upon the rentable area. Escalations under Article 20 for the
taxes and operating expenses, and the Metrorail and Pershing Square Benefit
Assessments, and any charges under other provisions of this Lease, shall be
passed through to Tenant in addition to the base monthly rental.
In no event shall the rent for the extended term be less than the herein
rental rate paid by Tenant for the premises for the last month of the initial
ten (10) year term of this Lease.
D. If the parties agree on the rent for the extended term, they shall
immediately execute an amendment to this Lease stating the rent for the
extended term. If the parties are unable to agree on the rent for the
extended term then within ninety (90) days prior to the commencement of the
extended term, each party, at its cost and by giving notice to the other
party, shall appoint a real estate appraiser with at least five (5) years
full-time commercial appraisal experience in the area in which the Premises
are located to appraise and set the rent for the extended term based upon the
foregoing formula. If a party does not appoint an appraiser within ten (10)
days after the other party has given notice of the name of its appraiser, the
single appraiser appointed shall be the sole appraiser and shall set the rent
for the extended term. If the two (2) appraisers are appointed by the parties
as stated in this paragraph, they shall meet promptly and attempt to set the
rent for the extended term. If they are unable to agree within 30 days after
the second appraiser has been appointed, they shall elect a third appraiser
meeting the qualifications stated in this Paragraph within ten (10) days
after the last day of the thirty (30) day period given the two appraisers to
set the rent. Each of the parties shall bear one-half (1/2) of the cost of
appointing a third appraiser and of paying the third appraiser's fee. The
third appraiser, however selected, shall be a person who has not previously
acted in any capacity for either party. Within thirty (30) days after
selection of the third appraiser, a majority of the appraisers shall set the
rent for the extended term. If the majority of the appraisers are unable to
set the rent within the stipulated period of time, the two (2) appraisals
that are closest in amount shall be added together and their total divided by
two (2); the resulting quotient shall be the fair market rental value for the
premises.
E. That Tenant shall execute an Addendum confirming the extension of
the Term of this Lease and the rental, provided that this option shall be
self-operating and that, once exercised by Tenant no further documentation by
the parties hereto shall be necessary in order to extend the Term of this
Lease.
F. That time is expressly made of the essence of this option.
13
This lease consists of FORTY-THREE (43) Articles consecutively numbered.
RULES AND REGULATIONS OF THE BUILDING REFERRED TO HEREIN WHICH CONSTITUTE A
PART OF THIS LEASE
1. The sidewalks, entrances, lobby, garage, elevators, stairways and
public corridors shall be used only as a means of ingress and egress and
shall remain unobstructed at all times. The entrance and exit doors of all
suites are to be kept closed at all times, except as required for orderly
passage to and from a suite. Loitering or congregating in any part of the
building or obstruction of any means of ingress or egress shall not be
permitted. Doors and windows shall not be covered or obstructed except that
Landlord shall have the right to require Tenant to keep the drapes closed at
all times.
2. Plumbing fixtures shall not be used for any purposes other than
those for which they were constructed, and no rubbish, newspapers, trash or
other substances of any kind shall be thrown into them. Walls, floors and
ceilings shall not be defaced in any way, and no one shall be permitted to
mark, drive nail, screw or drill into, paint, or In any way mar any building
surface, except that pictures, certificates, licenses and similar items
normally used in Tenant's business may be carefully attached to the walls of
the demised premises by Tenant in a manner to be prescribed by Landlord. Upon
removal of such items by Tenant, any damage to the walls or other surfaces,
except minor nail holes, shall be repaired by Tenant.
3. No awning, shade, sign, advertisement or notice shall be inscribed,
painted, displayed or affixed on, in or to any window or door or any other
part of the outside or inside of the building or the demised premises. No
window displays or other public displays shall be permitted, without the
prior written consent of Landlord. Tenant shall not solicit other tenants in
the building. Drapes may be installed by tenants provided they are of such
color, material, construction and installation as may be prescribed by
landlord. All tenant identification on public corridor doors will be
installed by Landlord for Tenant, but the cost shall be paid by Tenant. No
lettering or signs other than the name of the Tenant will be permitted on
public corridor doors, with the size and type of letters to be prescribed by
Landlord. The bulletin board or directory of the building will be provided
exclusively for the display of the name and location of Tenant only, and
Landlord reserves the right to exclude all other names therefrom and to
assess its Building Standard charge for each and every name other than the
name of Tenant which Tenant may desire to be placed upon such bulletin board
and to which Landlord may consent. All requests for listing of Tenants on the
Directory of Building Tenants must be submitted to the office of the building
in writing. Landlord reserves the right to approve all listing requests.
4. Electric wiring of every kind and telephone outlets shall be
installed in a manner as will be prescribed by Landlord. The location of
convenience outlets, electric light outlets, power outlets and telephone
outlets shall be approved by Landlord, but the cost of installation thereof
shall be borne by Tenant.
5. The weight, size and position of all safes and other unusually
heavy objects used or placed in the building shall be prescribed by Landlord
and shall, in all cases, stand on metal plates of such size as shall be
prescribed by Landlord. The repair of any damage done to the building or
property therein by putting in or taking out or maintaining such safes or
other unusually heavy objects shall be paid for by Tenant.
6. All freight, furniture, fixtures and other personal property shall
only be moved into, within and out of the building at times designated by and
under the super vision of Landlord and in accordance with such regulations as
may be posted in the office of the building. In no event will Landlord be
responsible for any loss or damage to such freight, furniture, fixtures or
personal property from any cause.
7. No improper noises, vibrations or odors will be permitted in the
building, nor shall any person be permitted to interfere in any way with
tenants or those having business with them. No person will be permitted to
bring or keep within the building any animal, bird or bicycle. No person
shall throw trash, refuse, cigarettes or other substances of any kind any
place within or out of the building, except in the refuse containers provided
therefor. No person shall be employed by Tenant to do janitor work in any
part of said building without the written consent of Landlord. Landlord
reserves the right to exclude or expel from the building any person who, in
the judgment of Landlord, is intoxicated or under the influence of liquor or
drugs or who shall in any manner do any act in violation of the rules and
regulations of said building.
8. The storage of goods, wares or merchandise on the premises will not
be permitted except in areas specifically designated by Landlord for storage.
No auction, public or private, will be permitted in the premises. Articles of
unusual size or weight and articles which exceed the design floor weight of
the building are not permitted in the building, unless permitted by Landlord
in writing.
9. The requirements of Tenant will be attended only upon application
at the office of the building. Landlord's employees shall not perform any
work or do anything outside of their regular duties unless under special
instruction from the office of the building, and no such employee shall admit
any person (Tenant or otherwise) to any office without specific instructions
from the office of the building.
10. All keys shall be obtained from Landlord, and all keys shall be
returned to Landlord upon termination of this lease. Tenant shall not change
the locks or install other locks on the doors.
11. Any Tenant using the premises after regular business hours or on
non-business days shall lock any entrance doors to the building used by
Tenant immediately after entering or leaving the building. Tenant, his
employees, agents or associates, or other persons entering or leaving the
building when it is so locked may be required to sign the building register
when so doing, and any watchman in charge may refuse to admit Tenant or any
of Tenant's employees, agents or associates, or any other person to the
building while it is so locked without a pass previously arranged or other
satisfactory identification showing such person's right to access to the
building at such time. However, Landlord assumes no responsibility whatsoever
in connection therewith and shall not be liable for any damage resulting from
any error in regard to any such pass or identification or from the admission
of or refusal to admit, any person to said building.
12. Tenant shall be deemed to have read these rules and to have agreed
to abide by them as a condition to his occupancy of the space herein leased.
THIS LEASE AGREEMENT WILL NOT BECOME EFFECTIVE OR A BINDING AGREEMENT BETWEEN
THE PARTIES UNTIL IT HAS BEEN COUNTERSIGNED BY CITINATIONAL-BUCKEYE BUILDING
CO. AND A COPY EXECUTED BY ALL THE PARTIES HERETO HAS BEEN RETURNED TO THE
TENANT.
LANDLORD: TENANT:
CITINATIONAL-BUCKEYE BUILDING CO., CITY NATIONAL BANK,
a California limited partnership a national banking association
By: OLIVE-SIXTH BUCKEYE CO., General Partner
By:
---------------------------
Title :
-----------------------
By:
------------------------------------
George Konheim, General Partner
14
EXHIBIT A
[CHARTS OF FINAL FLOOR PLANS FOR CITY NATIONAL BANK. FLOORS 1, 2, 3, 6, 9, 10]
SUPPLEMENTARY PARKING AGREEMENT
THIS PARKING AGREEMENT IS made as of September 30, 1996, between CITINATIONAL
BUCKEYE BUILDING CO., hereinafter designated the Landlord, and CITY NATIONAL
BANK, a national banking association, hereinafter designated the Tenant, as a
supplement to Article 6 of Tenant's Lease of Premises in the City National
Bank Building, of the same date, to which this Supplementary Parking Agreement
is attached.
1. DESIGNATED AUTOMOBILES. Only specifically designated automobiles
shall be entitled to the use of the parking rights herein granted. Such
automobiles shall be designated by the Tenant to the Landlord and shall be
clearly identified with parking identification stickers furnished by the
Landlord or by other suitable means specified by the Landlord. It is
expressly understood that only such specifically designated and identified
automobiles shall be entitled to park pursuant to this agreement and that the
said identification stickers shall not be transferable from the designated
automobile(s) to any other automobile. Any automobile parked in the parking
area without such identification sticker may be towed away at the expense of
the owner, as provided by the applicable city or county ordinance.
2. OPERATIONS. The rights herein granted are personal to the Tenant
only and are not assignable or transferable in any manner whatsoever without
Landlord's written consent first had and obtained. It is expressly understood
that Tenant shall not have the right to allow any other person to exercise
the rights herein granted, even though the Tenant is not himself exercising
such right on a particular day or during any particular period of time.
Landlord expressly reserves the option as to whether or not an attendant
will be furnished for the automobile parking area or areas. If no attendant
is furnished, the Landlord will provide suitable designation of the parking
area to be utilized by Tenant.
3. NON-LIABILITY. Except for Landlord's negligence as herein set
forth, Landlord shall not be liable, and Tenant hereby waives any and all
claims for personal injury and property damage of any kind, including but not
limited to theft, fire damage, collision damage, vandalism and damage of any
kind to any automobile of Tenant or its agents or employees while entering,
leaving or parked under this agreement at any time either during normal
building business hours or otherwise. Further, under no circumstances shall
Landlord be liable, and Tenant hereby waives any and all claims for theft,
vandalism or damage of any kind to any equipment installed in any automobile
including but not limited to stereos, radios, tape decks, compact disc
players, CB radios and television sets, nor for any packages, clothing,
briefcases (and the contents thereof or any other articles left in any
automobile, whether in the passenger compartment, the trunk, the glove
compartment or elsewhere. Landlord shall only have limited and specific
responsibility for any injuries or damages caused by the negligence of
Landlord, its agents and employees while acting within the scope of their
employment under this agreement.
Landlord shall not be liable to Tenant, in damages or otherwise, nor
shall the Landlord be deemed in default hereunder because of the Tenant's
inability to park the automobile(s) as hereinabove contemplated, due to force
majeure, strikes, lockouts or other labor troubles, riots, war, insurrection,
failure of any public utility to furnish service, accidents, insufficient
vacant parking area, or any other similar or dissimilar causes beyond the
control of the Landlord. There shall be no reduction or abatement of the
consideration payable hereunder by reason of any such failure or occurrence.
There shall be no abatement of consideration for vacations or holidays.
4. RULES AND REGULATIONS. Landlord shall have the right to promulgate,
and from time to time amend, such non-discriminatory and reasonable rules and
regulations as, in the sole judgment of the Landlord, are necessary for the
efficient operation of the parking areas, limiting, restricting and
regulating the parking privileges herein granted, and all such rules and
regulations so made by the Landlord, after notice thereof to the Tenant, shall
be binding upon the Tenant and become conditions precedent to the Tenant's
right to exercise the parking rights herein granted. Violation of any such
rules and regulations shall be deemed a material breach by Tenant of this
agreement.
5. RIGHT APPURTENANT. Tenant and Landlord previously hereto, or
concurrently herewith, have also entered into an Office Building Lease,
whereby Landlord demised to Tenant certain office space in the building
served by the aforesaid parking area or areas and the execution of this
License constitutes the exercise of a right appurtenant to said Office
Building Lease. It is expressly a condition precedent to Tenant's right to
exercise the parking rights herein granted that Tenant be not in default
under the aforesaid Office Building Lease and any default by Tenant's under
said Office Building Lease shall constitute a default under this Agreement
precluding Tenant's rights to park hereunder until such default be cured.
Any extension (or termination) of said Lease shall ipso facto extend (or
terminate) this Agreement.
6. LANDLORD'S PARKING OPERATOR. Landlord may assign its interest under
agreement to the parking operator with whom Landlord has contracted for the
operation and management of the aforesaid parking area or areas. Upon such
assignment, the parking operator shall have all the rights and duties or
Landlord hereunder, including, but not limited to, the right to enforce the
terms, covenants and conditions of this agreement and to receive payment of
the consideration provided herein.
7. ATTORNEY'S FEES. In the event it becomes necessary for either party
to file any action or actions for the enforcement of any of the terms,
covenants or conditions of this agreement, or if either party necessarily
intervenes in, or becomes a party, or is made a party to any action or
actions accruing out of this agreement in order to protect its rights, then
losing party will pay to prevailing party a reasonable attorney's fee in such
action or actions, which fee shall be fixed by the court in such action.
Executed at Los Angeles, California on the date first above written.
Landlord: Tenant:
CITINATIONAL-BUCKEYE BUILDING CO., CITY NATIONAL BANK
a California limited partnership a national banking association
BY: OLIVE-SIXTH BUCKEYE CO.,
General Partner
By: ________________________________ By:_____________________________
George Konheim, General Partner
Title:__________________________
2